Delhi High Court
Ig Technical And Economic ... vs Aman Travel P. Ltd. on 18 April, 2006
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This petition is directed against the judgment dated 30.7.2003 passed by the Civil Judge, Delhi, in Suit No. 276/2002 whereby the learned Judge has held that "the suit under Order 37 CPC is based on the cheques, the original cheque dated 24.8.1999 issued by the defendant has been filed on record, the suit filed by the plaintiff is within limitation and no relief has been claimed which does not fall within the ambit of Order 37 CPC. Accordingly, the suit of the plaintiff is decreed for a sum of Rs. 1,97,274/- with interest @ 10 per cent from the date of filing of the suit till the date of decree as the transaction is commercial in nature.
2. Brief facts of the case, as have been noted by the learned Civil Judge, are -
The brief facts leading to the present application are that plaintiff filed the suit Under Order 37 Civil Procedure Code for recovery of Rs. 1,97,274/- along with interest @ 20% per annum from the date of filing the suit till the date of decree.
It is the plaintiff' s case that defendant No. 2 being the Director of defendant No. l1 approached the plaintiff on 27.8.1999 and purchased Foreign Currency worth Rs. 1,46,144/- vide cash memo No. 2564 dated 27.8.1999. The defendant No. 1 through defendant No. 2 issued a cheque of Rs. 1,46,144/- bearing No. 596946 dated 08.9.1999 drawn on Central Bank of India, Ashoka Hotel, New Delhi with the promise that the above said cheque would be encashed on presentation. On this assurance the plaintiff accepted the post dated cheque and gave the foreign currency worth Rs. 1,46,144/- to the defendant No. 2 on 27.8.99.
Thereafter, the defendant No. 2 made a routine to contact the plaintiff and asked the plaintiff not to present the aforesaid cheque for its encashment and to wait for six months, consequently the said cheque become time barred. Thereafter the plaintiff requested several times to defendant No. 2 to make the payment but he refused , therefore on 24.3.2001 the plaintiff sent a legal notice asking the defendant to clear the outstanding amount. The said legal notice sent through registered post was returned to the plaintiff with the remark of refusal. Accordingly, the plaintiff filed the present suit for recovery.
The defendant was served on 29.11.2001 and they filed their appearance on the said case. Thereafter, summons for judgment were issued to the defendant on 30.01.2002 which was served on the defendant on 11.01.2003.
3. The petitioner filed an application for leave to defend which purportedly sought to raise friable issues, namely, that the amount shown in the post-dated cheque which was issued, was in lieu of air tickets purchased and that the respondent herein had been pressurising the petitioner to make payment in foreign exchange and, therefore, did not deposit the cheques. The trial court, upon appreciation of the material before it, came to the conclusion that the suit could be decreed under Order 37 CPC.
4. It is contended by counsel for the petitioner that the friable issues were raised inasmuch as the debt had been discharged in cash, which could only be proved by leading evidence.
5. I have heard counsel for the parties and gone through the order under challenge as also the material placed before me. It appears to me that the reasoning of the trial court, while decreeing the suit, suffers from no infirmity. The stand taken by the petitioner that he has made cash payments to the plaintiff to the tune of Rs. 1,47,000/- appears to be a moonshine defense. There is no basis laid down in support of such a contention and is merely a bald assertion. It is well settled that in an application to lead defense, the defense must be clearly set out and supported by any available material. A mere shot in the dark will not do. In the present case, it is not even mentioned as to when the money was paid in cash, to whom it was paid in cash, from where it was drawn etc.
6. In that view of the matter, I am of the opinion that the judgment under challenge cannot be disturbed. The petition and the pending applications are dismissed.
